Were the factfinders able to convict Petitioners on an invalid alternate theory of liability after being instructed on the statutory definition of consent?

A “Yates” error occurs when a general verdict is supportable on one theory of liability but not on another, and it is impossible to tell which theory the jury used to convict . Black v. United States , 561 U.S. 465, 470 (2010) (quoting Yates v. United States , 354 U.S. 298, 312 (1957) ); see Skilling v. United States , 561 U.S. 358, 414 (2010) (reasoning that Yates errors are reviewed for harmlessness). While Petitioners’ cases were pending on appeal, the Court of Appeals for the Armed Forces (CAAF) decided that two statutory theories of liability for sexual assault were legally distinct . United States v. Mendoza , 85 M.J. 213, 218 -20 (C.A.A.F. 2024) . In one of the Petitioners’ cases, t he CAAF expanded that holding: the Government cannot prove sexual assault “without consent” (10 U.S.C. § 920(b)(2)(A) ) by proving a complainant did not consent because he or she was asleep at the time —a distinct theory of liability (10 U.S.C. § 920(b)(2)(B) ). Pet.App. 12a (citing Mendoza , 85 M.J. at 220). Both holdings rested on how the Government could not charge one theor y and then argue another without violating a defendant’s right to fair notice. Id. But by addressing one due process issue , the CAAF created another : a Yates error. These cases raise the following question: Were the factfinders able to convict Petitioners on an invalid alternate theor y of liability after being instructed on the statutory definition of consent ?